Tori Stafford trial: If Michael Rafferty didn't kill her how can he be guilty of murder?

Terri-Lynne McClintic says shen and not Michael Rafferty, killed Tori Stafford. So why is he on trial for murder? Can Rafferty be guilty of murder if he didn't kill Stafford?

Yes, depending on the facts proved at trial.

One of the ways murder occurs is when a person, "for an unlawful objective, does anything he knows is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his objective without causing death or bodily harm to any human being".

First degree murder includes a killing
while committing or attempting to commit sexual assault or while committing or attempting to commit kidnapping and forcible confinement

Murder also occurs when someone assists another to kill and, as described below, 'turning a blind eye' is not a defence.

If Rafferty stumbled across the kidnapping of Stafford (say because his girlfriend called him and said 'come over') and he took no part in the kidnapping and then, totally out of the blue, McClintic killed Stafford. In such a case Rafferty would not be guilty of murder (he could be guilty of other things, especially if he helped cover up the crime).

If, however, Rafferty helped kidnap Stafford or sexually assaulted her knowing her death was likely then he is guilty of first degree murder.

Legally this case is similar to one from Alberta a few years ago.

Thirteen year old Nina Courtepatte's body was found on a golf course just outside Edmonton. She had been gang raped, bludgeoned with a hammer and had her throat slit. Five people, three men and two women, were involved in the killing; three of those were juveniles. The killing was planned, deliberate and committed for sport -- it is hard to imagine a more dreadful crime -- the similarity to the Stafford murder is chilling.

One of the adults, Michael Briscoe, took no part in the sexual assault or the killing. He did stand by and watch taking no steps to stop the murder. Briscoe claimed he did not know Courtepatte was going to be raped and murdered; that was his defence.

Briscoe, however went further that merely standing aside. He drove the gang and Courtepatte from the West Edmonton Mall, where she was kidnapped, to the golf course where she was killed. After parking at the golf course he said "whatever you guys wanna do just do it. Don't do it around me I don't want to see nothing I don't know what the fuck you're gonna do". Later, while watching the assault and murder he said, "that's what I see. And I was like ahh fuck I don't wanna know". Briscoe seems to have known something was going to happen but drove Courtepatte to her death anyway. This may be similar to what happened in the Stafford case.

The trial judge acquitted Briscoe of all charges finding there was insufficient evidence to prove he knew of the plan. The Supreme Court of Canada disagreed; in doing so they sent a strong message that looking away will not be a defence to crime.

Legally, wilful blindness describes a situation where someone tries to avoid criminal liability by intentionally ignoring the obvious. For example, someone transporting packages containing illegal drugs might say they never asked what the contents of the packages were, and therefore lacked the requisite intent to break the law. Generally speaking, the defence does not work because wilful blindness amounts to knowledge. And knowledge of wrongdoing is a crucial element of an offence.

In Canada a crime is defined by two things - the act itself and the intention behind the act. The very same act can be criminal or not depending on the intention; so a taxi driver driving a holdup gang away from a bank has committed no crime if the driver is unaware of a robbery. The very same act is criminal if the driver knows of the robbery and intends to assist in a getaway.

The same analysis applies to murder charges. To be guilty of being a party to a murder an accused must assist someone who intended to cause death or at least bodily harm likely to cause death. Lacking that knowledge there is no crime. But what if the person does not know that there was an intention to cause death or bodily harm because they were wilfully blind? Here is seems Briscoe knew that he was driving Courtepatte to her death but chose not to ask the obvious questions to make that knowledge express. The Supreme Court said, if that is shown at trial, then Briscoe is guilty.

The Court carefully distinguished wilful blindness, where the accused knows something is wrong and decides to suppress that knowledge, from recklessness, where the accused does not know even though, reasonably, the accused ought to have known. The Court says: "While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but... "deliberate ignorance"."

The defence "I see nothing" is no defence at all.
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